Overview of the Americans with Disabilities Act (ADA)

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Presented By: Stacey Kernisan Training Specialist Mid-Atlantic ADA Center [email protected] 301-217-0124 v/tty

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David Stewart Information Specialist Mid-Atlantic ADA Center [email protected] 304-925-8622

Your Knowledge of the ADA

Quick Quiz –3 Questions

Multiple Choice ? If you live to the age of 70, the chance of you having a disability is: A. 12% B. 28% C. 55% D. 82%

Next Question Over 50% of accommodations for employees with disabilities will cost: A. Nothing B. Between $500 and $1,000 C. Over $1,000 D. More than the employer can afford

Next Question – True/False The ADA is an affirmative action law for individuals with disabilities.

ADA = Civil Rights

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What is the ADA? • Americans with Disabilities Act, passed in 1990 • Federal CIVIL RIGHTS legislation that says it is illegal to discriminate against people with disabilities in employment, state and local government services, private businesses, telecommunications and transportation • Goal: The full inclusion of people with disabilities in all aspects of American society 8

Five Titles of the ADA Title I. Employment Prohibits disability discrimination in all employment processes

Title 2. Accessibility in public entities Physical and program accessibility in state/local govt. entities

Title 3. Accessibility in businesses Physical and program accessibility in restaurants, hotels, stores, places of business

Title 4. Telecommunications Telephone and communications systems for the public

Title 5. Miscellaneous 9

Why was the ADA needed? Think back to before 1990… • There were fewer curb cuts

• Many businesses were not accessible • People with disabilities were rarely seen in advertisements and TV shows

• Interpreters were rarely used at public events • People with disabilities were excluded from many activities due to barriers 10

In summary: Legislative timeline 1964—Civil Rights Act (did not include disability) 1968—Architectural Barriers Act (ABA) 1973—Rehabilitation Act (amended 1998—Section 508) 1975—Individuals with Disabilities in Education Act (IDEA) 1976—Higher Education Act Amendment (to include students with disabilities) 1986—Air Carrier Access Act

1988—Fair Housing Amendments Act 1990—Americans with Disabilities Act (ADA) 2008—ADA Amendments Act signed into law 11

Who is “covered” (must comply with) the ADA Entities with 15 or more employees Public (government) agencies regardless of whether they receive federal assistance Privately operated commercial entities (for example, private schools and colleges, banks, restaurants, theaters, hotels, private transportation, supermarkets, shopping malls, museums, recreational facilities, sports arenas, medical, legal and insurance offices) Exempt: Private clubs and religious organizations

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The ADA (1990) ADA disability definition based on the 1973 Rehabilitation Act 1. An individual who has a physical or mental impairment that substantially limits one or more major life activities 2. An individual who has a record of such an impairment 3. An individual who is regarded as having such an impairment

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What is the ADAAA? • Americans with Disabilities Act Amendments Act (ADAAA) 2008 • Overall purpose -- “To restore the intent and protections of the Americans with Disabilities Act of 1990” • Effective January 1, 2009 • Regulations effective as of May 24, 2011 14

So why was the ADAAA passed? U. S. Supreme Court rulings narrowed the definition of disability such that: • Focus of attention more on whether the individual has a disability instead of on the alleged discrimination event • The Supreme Court’s decisions construed the term “disability” too narrowly resulting in fewer individuals included under its protections

• The EEOC’s current regulation defining “substantially limits” as “significantly restricted” expresses too high a standard and is inconsistent with Congressional intent

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How did the ADAAA change the definition of disability? • Restored the definition (and protection) to the original intent of Congress in 1990 • Definition itself did not change • Interpretation of the phrases in definition changed • Mitigating measures • Episodic conditions • Some impairments considered disability without extensive analysis • Broadened protections under “Regarded as”

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Remember this definition? The ADA (1990) ADA disability definition based on the 1973 Rehabilitation Act 1. An individual who has a physical or mental impairment that substantially limits one or more major life activities 2. An individual who has a record of such an impairment 3. An individual who is regarded as having such an impairment

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The ADA Amendments Act of 2008 • Signed into law by President George W. Bush on September 25, 2008 • Went into effect on January 1, 2009 • The final regulations were published in the Federal Register on March 25, 2011. • Standards also apply under the Rehabilitation Act

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Major Goals of New Legislation • To restore the ADA’s broad protections as intended by Congress • To reject the Supreme Court’s view that “disability” should be determined taking into consideration the effects of mitigating measures • To reject the Supreme Court’s holding that the ADA requires a “demanding standard” for establishing coverage and requires that an impairment “severely restrict” major life activities

ADA Amendments Act • The Amendments Act makes it easier to meet the definition of “disability”

• The Act states the definition of “disability” in the ADA “shall be construed in favor of broad coverage” and “should not demand extensive analysis”

Statutory Changes to Definition of “Disability” • “Substantially limited” redefined • Major life activities include “major bodily functions” • Effects of mitigating measures (other than ordinary eyeglasses or contact lenses) cannot be considered in determining “disability” • Impairment that is episodic or in remission is a disability if it would be “substantially limiting” when active

Examples of Impairments That Will “Consistently Meet the Definition of Disability”

Due to lower substantially limits standard, new mitigating measures rule, inclusion of major bodily functions as major life activities, and new episodic/in remission rule for some types of impairments, “the individualized assessment of the limitations on a person can be conducted quickly and easily” and they will “consistently meet the definition of disability”

Examples include deafness, blindness, intellectual disability, partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia

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Examples of Impairments that May Be Disabling for Some Individuals But Not For Others

• Impairments such as asthma, back and leg impairments, carpal tunnel syndrome, and learning disabilities • May require somewhat more analysis to determine whether they are substantially limiting for a particular individual • Level of analysis still should not be extensive

Examples of Impairments that Usually Will Not Be Disabilities Temporary, non-chronic impairments of short duration with little or no residual effects are usually not disabilities: the common cold, seasonal or common influenza, a sprained joint, minor and nonchronic gastrointestinal disorders, or a broken bone that is expected to heal completely

Major Life Activities Think of 5 different activities that you did this morning that involve a major life activity. hint : seeing and hearing are major life activities.

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Major Life Activities These are basic activities that the average person in the general population can perform with little or no difficulty.

• Caring for Oneself • Performing Manual Tasks • Seeing • Hearing • Eating 27

• Sleeping • Walking • Standing • Lifting • Bending

Major Life Activities • Thinking • Communicating • Sitting • Reaching • Interacting with Others • Working 28

continued

• Breathing • Learning • Reading • Concentrating • Thinking • Speaking

Under the ADAAA, 'major life activities' is expanded to include "major bodily functions."

• Immune system • Normal cell growth • Digestive • Bowel • Bladder 29

• Brain • Circulatory • Cardiovascular systems • Neurological

Major Bodily Functions • Respiratory • Endocrine • Lymphatic • Musculoskeletal

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continued

• Special sense organs and skin • Genitourinary • Reproductive functions

New Standard Episodic Disabilities:

• epilepsy • hypertension • multiple sclerosis • asthma • diabetes

• major depression • bipolar disorder • schizophrenia • cancer

Considered a disability even in remission, if when active would be substantially limiting 31

Mitigating Measure

Any device, measure, or medication that reduces the effects of the disability

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Mitigating Measures Positive effects of mitigating measures (except for ordinary eyeglasses and contact lenses) are ignored in determining whether an impairment is substantially limiting.

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The Americans with Disabilities Act Title I:

Employment

Title II: State and Local Gov’t

Title III: Private Business Title IV: Telecommunications Title V: Miscellaneous

ADA Title I - Employment • An employer may not discriminate against an employee on the basis of disability in any aspect of the employment relationship.

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ADA Title I - Employment • The activities covered include: • Outreach, Application Process, Testing • Interviewing, Hiring, Assignments • Evaluation, Discipline, Medical Examinations • Compensation, Promotion, On-the-Job Training • Layoff/Recall, Termination, Leave • Benefits of employment e.g., health insurance

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Title I ensures that qualified individuals with disabilities: • Have comparable access to the employment process • Are afforded an interactive process to determine reasonable accommodation • Are provided access to all benefits of employment including access to related services (e.g., gym, transportation) 37

Qualified Individual with a Disability A qualified individual with a disability means one who satisfies the requisite skill, experience, education, and other job-related requirements of the position such individual holds or desires, and who: with or without reasonable accommodation can perform the essential functions of such position. 38

Essential Job Functions What makes a job task essential? • If the position exists to perform the function • If there are a limited number of employees among whom the task can be distributed • If the function is highly specialized 39

Evidence of Essential Functions • Employer's judgment as to which functions are essential • Written job descriptions prepared before advertising or interviewing applicants • Amount of time spent performing the function 40

Evidence of Essential Functions • Consequences of not performing the function • The terms of a collective bargaining agreement • Work experience of past incumbents on the job • Current work experience of incumbents in similar jobs

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Disability Related Inquiries Stages of Employment • Pre-offer

• Post-offer • On the job

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Pre-Offer Stage

Before a job is offered, the employer may not ask questions about an applicant’s disability and can only discuss the person’s ability to perform specific tasks.

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If the applicant has a visible disability, the employer may ask the applicant to describe or demonstrate how he or she would perform a specific task that the employer has concerns about. 44

Disability Related Inquiries Interviewer May NOT Ask About:

• The nature or extent of the applicant’s disability. • If the applicant or anyone in his/her family has a disability.

• The applicant’s health. • If the applicant has a history of emotional illness. • If the applicant has ever had an injury or disease.

• If the applicant has ever seen a psychiatrist. • If the applicant has ever had a drug or drinking problem.

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Pre-offer Inquiries • The ADA prohibits a prospective employer from inquiring verbally or in writing about an applicant’s health or disability before offering a position to that applicant. • Employer may not require a medical exam at this stage. • Drug use tests are permitted if required of all applicants.

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Post-Offer • After an individual is offered the position, it is then appropriate to discuss reasonable accommodation needs, if the applicant requests an accommodation. • This process should be interactive with the potential employee providing documentation describing specific accommodation needs and discussing options with the employer. 47

Reasonable Accommodation • Modification to the job application process

• Modification to the work environment or the manner under which the position held is customarily performed • Modification that enables an employee with a disability to enjoy equal benefits and privileges of employment

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Reasonable accommodation: The ten things you need to know 1. What is an accommodation? 2. What are some examples? 3. How much does it really cost? 4. Who can get accommodations?

5. Can accommodation requests be denied? 6. How is an accommodation request triggered? 7. How is an accommodation decided upon?

8. Can medical documentation be collected? 9. Who else can be told? 10. How can we make it work? 49

Accommodations are dependent upon: • The specific requirements of the job • The particular need(s) of the employee or applicant • The extent to which modifications or aids are available without causing an undue hardship on the employing organization

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The Accommodation Process • Employee must let the employer know that he or she needs an adjustment or change at work because of a disability • The employer may verify the employee’s disability. • The employer identifies the essential job functions that require accommodations. 51

The Accommodation Process continued • The employer consults with the employee to identify a variety of accommodations to reduce or remove barriers and to increase productivity. • The employer implements the most appropriate accommodations, taking into account the preferences of the individual with disabilities. 52

What are some examples? • Using assistive technologies: Screen readers, JAWS, Audio-text software

• Change in work location • Change in work environment • Change in equipment

• Change in schedule • Changes in break times

• Elimination or exchange of marginal job tasks

• Work from home

• Re-assignment

• Using job aids

• Leave 53

How much does it really cost? A study of accommodation costs across workplaces and sectors* – About half (56%) of accommodations cost nothing – When accommodation did cost, average was $500 – Appears that accommodation costs are decreasing

Employer is responsible for providing accommodation, tax incentives are available** *Job Accommodation Network (Updated 2011). Workplace accommodations: Low cost, high impact. http://AskJAN.org/media/LowCostHighImpact.doc **Job Accommodation Network: See http://www.dol.gov/odep/pubs/misc/job.htm

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Who can get accommodations? Applicants, full and part-time employees, seasonal and temporary workers: • With disabilities covered by the ADA and • Who can perform the essential functions of the job with or without reasonable accommodations

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How is the Reasonable Accommodations process triggered? Process starts when a worker says, “I am having trouble performing my job because of a medical condition or disability” (This can also come from a third party on individual’s behalf) • Employee can make the request in plain language • Employer can have a formal accommodation process that the employee must follow • Employer must respond to an accommodation request in a timely manner. 56

Can accommodation requests be denied? Undue hardship • No set dollar amount • Relative to the overall funds of the organization • Disruption of operations— must be significant, legitimate and concrete • Consider other sources (i.e. tax incentives or equipment donation) 57

Safety reasons? About direct threat Employer does not have to eliminate essential functions or reduce a performance standard

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How is an accommodation decided upon? The interactive process The person him/herself is the best source of information, but employer ultimately decides Most expensive accommodation is not always the best Consider: • The disability • The job • The environment where the job occurs 59

Can medical documentation be collected? Employer only has the right to documentation about the disclosed disability. Documentation must be job related and consistent with business necessity All medical information must be kept confidential and separate from the employee’s work file.

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Who else can be told? All medical information must be kept confidential Only co-workers directly impacted by the accommodation can be told that there will be a change, but not why Communicate that the accommodation is provided according to law – without saying which law – as it would be for any qualified employee and that the company has a strict privacy policy and values the privacy of all its employees.

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Accommodation Brainstorm • Employee with diabetes • Employee with prosthetic leg must use vehicles owned by the business • Employee with brain-injury has trouble staying organized • Employee who is Deaf • Employee who has low vision 62

Examples of Accommodations that are NOT REASONABLE • Placing an applicant with a disability in a job for which he/she did not specifically apply • Placing an individual with a disability into a job if doing so would create a direct threat to the health or safety of the individual or others • Maintaining the salary of an employee reassigned from a higher-paying job to a lower-paying job, if the employer does not do so for other employees

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Examples of Accommodations that are NOT REASONABLE • Eliminating essential functions of the job

• Lowering production standards • Providing personal use items (i.e. prosthetic limb, hearing aids, wheelchair)

• Creating a job • Promoting an employee • Bumping another employee from his/her job

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Disclosure Under the ADA, an employer must provide reasonable accommodations to the KNOWN physical or mental limitations of a qualified applicant or employee with a disability.

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Title I Enforcement • File a complaint with the EEOC • Other Options:

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File a complaint with the state or local Human Relations Agency

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Alternative Dispute Resolution

Title II

State and Local Governments

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Who is Covered by Title II? Every type of state and local government entity, including: • • • •

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all types of state agencies counties municipalities and cities executive, legislative, and judicial branches of state and local government

General Requirements

A public entity must reasonably modify its policies, practices, or procedures to avoid discrimination. 69

Designation of responsible employee and adoption of grievance procedures

A public entity that employs 50 or more persons shall designate at least one employee to coordinate its efforts to comply with, and carry out its responsibilities under, the ADA, including any investigation of any complaints. 70

Complaint Procedure A public entity that employs 50 or more persons shall adopt and publish grievance procedures providing for prompt and equitable resolution of complaints.

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General Requirements State and local government must provide full program access to people with disabilities.

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Title II: Program Access • Programs accessible “when viewed in their entirety” • ADA does NOT give special privileges or entitlements for people with disabilities – it’s about equality! • Each state program should insure everyone can access all facets of the program • Reasonable Modifications to insure programs accessible 73

How to Achieve Program Access • Acquire or redesign of equipment • Relocate to alternate, accessible location • Assign aides • Make structural, architectural changes

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Effective Communication Public entities must ensure effective communication with individuals with disabilities.

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Public entities must provide appropriate auxiliary aids and services where necessary to make sure that individuals with speech, hearing and vision disabilities understand what is said or written and can communicate effectively

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They must also provide effective communication to companions who are individuals with disabilities. (Relative, friend or someone else with whom the agency would usually communicate.) 77

Personal devices and services A public entity is not required to provide to individuals with disabilities personal devices, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; or services of a personal nature including assistance in eating, toileting, or dressing. 78

Undue Burden A public entity is financially responsible for the cost of the auxiliary aid or service provided unless it can demonstrate that it would be an undue financial burden.

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Even if a particular auxiliary aid or service is found to be an undue financial burden, the entity must still provide effective communication using a different auxiliary aid or service.

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General Requirements • Services and programs must be delivered in the most integrated setting appropriate to the person’s level of need even if separate programs exist. – Integration of persons with disabilities is one of the goals or values of the ADA.

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General Requirements

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A public entity may not impose eligibility criteria for participation in its programs that screen out persons with disabilities unless the requirements are necessary for the provision of the service.

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Service Animals • "Service animal.'' The term "service animal'' is a dog that is trained to provide assistance to an individual with a disability.

Therapy & Emotional Support Animals Not covered by the ADA. The FHA and many State Human Rights Acts cover these animals.

Title III Public Accommodations

Title III: Public Accommodations Places of public accommodation may not deny people with disabilities goods or services.

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Public Accommodations Public accommodations are private entities that own, lease, lease to, or operate a place of public accommodation.

A facility operated by a private entity whose operations affect commerce and that falls within at least one of twelve categories.

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Places of Public Accommodation • 1) An inn, hotel, motel, or other place of lodging; • (2) A restaurant, bar, or other establishment serving food or drink; • (3) A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment; 88

• (4) An auditorium, convention center, lecture hall, or other place of public gathering; • (5) A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; • (6) A Laundromat, dry-cleaner, bank, barber shop, beauty shop, gas station, professional offices, hospital, or other service establishment; 89

• (7) A terminal, depot, or other station used for specified public transportation; • (8) A museum, library, gallery, or other place of public display or collection; • (9) A park, zoo, amusement park, or other place of recreation; 90

• (10) A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; • (11) A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; • (12) A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation. 91

Title III Requirements Reasonable modification of policies and procedures  “Fundamental alteration”– a change in the essential nature of the business – is not required

Other Power-Driven Mobility Devices  Non-traditional devices (for example, Segways) used as mobility aids by people with disabilities must be allowed in many circumstances

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Title III Requirements: Effective Communication • Businesses must to take steps to provide “auxiliary aids or services” (exchange written notes, provide sign language interpreter services, Braille materials, etc.) when necessary to communicate effectively with customers with vision, hearing and speech disabilities • If a specific communication aid or method would be an undue burden or fundamental alteration, a business must provide an effective alternative, if there is one 93

Title III Requirements: Physical Access • Architectural accessibility – For new facilities – built after March 15, 2012 must meet the 2010 standards

• Readily achievable barrier removal – In existing facilities

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How accessible is a facility? • Consider the primary access features: – Parking – Entrance – Service area – Rest room – Amenities: water fountains, vending machines, telephones

Simple test for usability established by the Dept. of Justice • Can you park? • Can you enter? • Can you participate? • Can you access the amenities?

Parking Parking Spaces must be nearest the accessible route to the entrance, at least 8 foot wide, with an access aisle They must have proper signage The surface must be smooth and level 97

Surface • Must be stable, firm, slip-resistant • Changes in level between 1/4 inch and 1/2 inch must be beveled with a slope no greater than 1:2. • Changes in level greater than 1/2 inch must have a ramp 100

Accessible Entrance Besides the route to the entrance being accessible, The entrance door must be accessible And signage must be provided if the main entrance is not the accessible entrance

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Rest rooms • Proper Signage • Accessible door • Room to maneuver

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Accessible Amenities • Water fountains • Telephones • Vending machines • Information kiosks • Computer stations 105

Accessible features must be maintained so that access is provided regardless of weather or other elements. – – – –

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Snow removal policy Enforcement of parking policy Lifts maintained Access provided during construction to maximum extent feasible

Question: • What are some examples of readily achievable barrier removal?

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Possible Answers • Widening a door • Installing grab bars • Building a ramp • Changing round door knobs to lever handles • Reducing the pressure to open a door • Rearranging furnishings / equipment 108

Alternatives to Barrier Removal • If barrier removal is not readily achievable, public accommodations must make goods and services available through readily achievable alternative methods

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Examples: Alternatives • Service at other accessible locations • Home delivery • Door bell to request service • Moveable chairs to provide access where fixed seating is not accessible • Signage to alert patrons of alternatives

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Religious organizations are exempt from Title III Churches, mosques, synagogues and other religious organizations and all of their activities, even if they are open to the public, do not have obligations under Title III. 111

Title II & III Enforcement • File a complaint with the Department of Justice or Department of Transportation • Private lawsuits • Alternative Dispute Resolution including mediation 112

Title IV: Telecommunications • Requires that all telecommunications companies in the U.S. take steps to ensure functionally equivalent services for consumers with disabilities.

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Closed Captioning • All televisions must have closed captioning capability

• All government sponsored video programming must be closed captioned

Title IV: Telecommunications • Federal Communications Commission is the enforcement agency for Title IV

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Title V - Miscellaneous • If state or local codes are more stringent than the ADA, those codes will apply. • The ADA does not cover the executive branch of the federal government (covered by Section 504). • ADA does cover Congress and the legislative branch. • ADA does not cover private apartments and homes. • Air transportation is covered by the Air Carriers Act.

• Title V contains the “Helms Amendments” which specify that sexual orientation and phobias and manias are not covered • It outlines reimbursement guidelines for attorneys • Prohibition of coercing, threatening or retaliating • Requirements for historic properties • The role of federal agencies enforcing the ADA and providing technical assistance

U.S. Department of Justice http://www.ada.gov

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Equal Employment Opportunity Commission http://www.eeoc.gov

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Job Accommodation Network http://www.askjan.org

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State Assistive Technology Programs • Learn about Assistive Technology • See and Try Assistive Technology • Buy, Sell & Recycle Assistive Technology

List of state programs and contact information: http://www.resnaprojects.org/allcontacts/statewidecontacts.html

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United States Access Board http://www.access-board.gov

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The Mid Atlantic ADA Center is 1 of 10 Regional Centers Providing: • Information • Guidance • Materials • Newsletter/E-Bulletin • Training • Toll-free phone number: 800-949-4232 V/TTY • Website: www.ADAinfo.org 123

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ADA National Network www.adata.org Toll-free phone number: 800-949-4232 V/TTY

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Questions?

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